James M. Redwine

Elections

The Sky’s Falling

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The national media push a highly addictive drug called paranoia. If one wants to get a reliable weather forecast or find out if a local kitten is not lost, local T.V. and regional newspapers are the best source. But if we are in need of a rush brought on by fear of catastrophe or schadenfreude, we flip the remote incessantly between CNN and FOX. CBS, NBC and ABC are available but boring. PBS can be interesting but is about as exciting as a library. No, if we want cataclysm or the satisfaction of seeing the rich and powerful fail, we must have cable. You might wonder about MSNBC but we can only take so much self-indulgent cynicism.

Gentle Reader, if you were awake, as I was at 4:00 a.m. staring at the peach-colored ceiling and wondering if I should use the restroom again or make a cup of coffee, you may have defaulted to cable T.V. That is where I saw the bobbleheads of CNN and FOX fervently seeking our advertising eyeballs by continually ratcheting up the partisan rhetoric. In between the machine gun fire of five minutes of adds were crammed five-minute exhortations camouflaged as news. Today, as usual, CNN was frothing about Donald Trump and FOX was exorcised about Cuba and communism, which FOX posited was one and the same.

CNN was giddy with the no-so-breaking story that former President Trump was unhappy about the last election, so much so that General Mark Milley, Trump’s choice for Chairman of the Joint Chiefs of Staff of the military, was concerned about a peaceful transfer of power. FOX apparently either did not know who Milley was or did not care. FOX made no mention of this “bombshell” possibility. FOX was excitedly showing Florida Governor Ron DeSantis’ campaign coozies which attacked Anthony Fauci as FOX repeatedly rolled film of protests in Cuba. CNN did not take note of Cuba nor communism as its commentators were busy extolling the virtues of giving away trillions of dollars of borrowed taxpayer money.

What came through quite clearly, even as I dozed in and out while desperately seeking facts hidden among the rushes of opinion, was that CNN and FOX both believed that Chicken Little was correct. Each of their favorite evil acorns that fall upon us is a harbinger of the sky’s collapse upon America. We must eliminate all vestiges of Trumpism, and now DeSantisism too, along with President Biden and any federal help for poor people. Of course, we can do this by buying the products hawked among the invective spewed by the incredulous news anchors. Just as grade school teachers emphasizing that we children should obey the crossing guards, cable news claims it is our best source for gospel; critical analysis is just too much trouble and no fun besides. Most importantly, run out and buy more stuff before prices rise again.

Briefly Speaking

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I.

The Salient Issue 

One method of grappling with what are the most vital issues America must resolve is to first eliminate those issues that blur our thought process. Five years of partisan ill will have sapped our nation’s psyche. Our health and our economy have suffered as we have found it more entertaining to castigate those who disagree with our political views than to make the hard choices required to battle COVID-19 and its devastation of our society. The events of January 06, 2021 and our reactions to them will either continue us on our downward spiral, or perhaps, America can remember and apply the healing lessons from our history.

Immanuel Kant (1724-1804) and Gerald Ford (1918-2006) would address the January 06, 2021 attack on our Capitol Building differently. Kant, the great German legal philosopher, would hold it immoral to not require retribution against President Trump for the death and destruction that occurred after Trump’s call for a march on Congress even though President Trump had only fourteen days left to serve when the riot took place. Kant’s position on the legal duty to punish is set forth in the following example. If we envision an island society that decided to dissolve itself completely and leave the island at a time prisoners sentenced to be executed were awaiting their fate, it would be immoral to leave the island without first carrying out the executions. Kant’s rationale for this seemingly needless act was that the blood guilt of the prisoners would attach to the general society if justice was not administered. An eye for an eye would be called for according to Kant.

In contrast, President Ford invoked the wisdom and healing of Jesus when Ford issued a pardon to disgraced ex-President Richard Nixon (1913-1994) for Nixon’s role in covering up the burglary of Democratic National Committee Headquarters. Ford issued the pardon in September only one month after Nixon resigned in August 1974 to avoid impeachment. Instead of retribution, Ford chose mercy, but not just for Nixon; America needed relief too.

Of course, neither revenge nor mercy can, by definition, be perfect justice. However, when it comes to crimes against the State there are larger issues than justice for individuals. The greater good may require a more involved response. Fortunately, we have the wisdom of our Founders and the courage of such leaders as President Ford to aid us in our decision-making process. 

II.

Separation of Powers

Our Founders built our Constitution on the general theory of three equal branches of government. The events since the election on November 03, 2020 give evidence of the abiding legacy left for us in 1789. After the election the Judicial Branch rendered numerous decisions that upheld the Rule of Law. Vice President Pence in the Executive Branch has refused to use the 25th Amendment for political purposes, and the Legislative Branch has resisted attempts to usurp the will of the electorate to de-certify the Electoral College results. Our governmental framework has been stretched but has accommodated pressures from many angles.

All three branches are working together to identify and prosecute those individuals who violated our seat of government with physical destruction and death. With the cooperation of numerous law enforcement agencies and the courts, along with the laws previously enacted by our federal and state legislatures, those who brought nooses, pipe bombs and twist-ties to their pre-meditated crimes are being identified; and if probable cause to commit crimes is shown, and guilt beyond a reasonable doubt is proven using due process of law, just punishment should result. Gentle Reader, next week, if you are available, we can consider the differing treatments of individuals and the issue surrounding the legal concepts of attenuation of culpability. As to President or ex-President Trump, I respectfully submit that continuing to have our country divided about half and half concerning Donald Trump is akin to President Lincoln’s prescient declaration that a house divided against itself will not stand.

With that in mind I submit for your consideration a Gavel Gamut article I wrote right after President Ford died in which it was suggested Ford sacrificed his political career for his country in 1974. I have slightly modified the original article:

III.

Pardon Me, President Ford

(First published 08 January 2007)

President Gerald Ford died December 26, 2006. In a life filled with public service, he will always be best known for his pardon of President Nixon in 1974. President Nixon had personally chosen Gerald Ford to replace the disgraced Vice President Spiro Agnew who resigned in 1973 amid disclosures of bribery while Agnew was Governor of Maryland. Vice President Ford served under President Nixon until Nixon resigned in August of 1974. One month after Nixon resigned, President Ford issued him a full pardon for any crimes Nixon may have committed while president.

At the time, many Americans, including me, were calling for a complete investigation of the Watergate debacle and especially Nixon’s involvement in it. It was a time of a media feeding frenzy and blood in the water. President Ford took the unprecedented step of going personally before Congress and flatly stating that President Nixon and then Vice President Ford had no deal to pardon Nixon if Nixon would resign.

I recall how dubious I was when President Ford stated that he issued the pardon only to help our country to start healing from the loss of confidence caused by Watergate. Yet, after a few months I began to have second thoughts about my initial reaction to the pardon. I realized how much courage it took for President Ford to go straight into the anti-Nixon firestorm sweeping the United States. As a country, we were almost paralyzed by the partisan fighting at home and the War in Vietnam. [Insert 4 years of partisan bickering during the Trump presidency and include at least 1 year of COVID-19.] We needed a new direction and a renewed spirit in 1974 just as we do today. Surely President Ford with his twenty-two (22) years in Congress knew he was committing political suicide by not giving us our pound of flesh. Still, he put his country first. Of course, the country rewarded his sacrifice by booting him from office and electing President Jimmy Carter to replace him.

But during the campaign of 1976, when President Ford came to Evansville, Indiana on April the 23rd, I took our son, Jim, out of school and we went to the Downtown Walkway to see the man who put country above self. For while William Shakespeare almost always got his character analysis right, when it comes to President Ford, “The good he did lives after him.” Julius Caesar, Act III, sc. ii.

Even President Carter, one of America’s most courageous and best former presidents said of his erstwhile political opponent President Ford: “President Ford was one of the most admirable public servants I have ever known.” And when it came to the pardon of President Nixon, Senator Ted Kennedy, while admitting that he had severely criticized the pardon in 1974, said that he had later come to realize that:

“The pardon was an extraordinary act of courage that historians recognize was

truly in the national interest.”

A Legal Revolution

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Alexis de Tocqueville (1805-1859) was a Frenchman who studied American society during a nine-month tour in 1831 when the United States were still simmering with vitriolic political animus from the 1824 and 1828 elections between John Quincy Adams and Andrew Jackson. Adams was elected by the House of Representatives in 1824 and Jackson won via the Electoral College in 1828. After neither election did the United States fall into chaos, even though Jackson won both the popular vote and a plurality, but not a majority, of the Electoral College vote yet Adams grabbed the presidency in 1824.

Four men ran for president in 1824, John Quincy Adams, Andrew Jackson, Henry Clay and William Crawford. Because the Electoral College vote was split in such a way that none of the four received a majority, as required to be elected President, under the Twelfth Amendment to the U.S. Constitution a “contingent” election was held in the House of Representatives. Each state’s delegation was given one vote and Adams was elected. Jackson and his supporters alleged that Adams and Clay had entered into a “Corrupt Bargain” to shift Clay’s votes to Adams. Regardless, Adams was elected by the House and the country moved on until 1828 when Jackson ran against Adams again.

In his treatise on American democracy de Tocqueville defined America’s presidential election as “a revolution at law” and described it as follows:

“Every four years, long before the appointed (presidential election) day arrives, the election becomes the greatest, and one might say the only, affair occupying men’s minds…. As the election draws near intrigues grow more active and agitation is more lively and widespread. The citizens divide up into several camps.… The whole nation gets into a feverish state.”

De Tocqueville’s ultimate verdict on America’s democracy was encapsulated in his general verdict on how political controversies were ultimately resolved. His observation was that:

“In America there is hardly a political question which does not sooner or later turn into a judicial one.”

De Tocqueville’s opinion was that the American manner of resolving political issues without bloodshed worked because, unlike European monarchies, the United States citizens respected the law and they did so because they had the right to both create it and change it. Since we get to choose our legislators who write our election laws and because we can change the laws by changing whom we elect if we are unhappy, we accept the laws as written including who is ultimately declared the winner of a current election.

The laws we have the right to create and the right to change include filing for an elected office, running for that office, who counts the votes, how they are counted, as well as how and when someone can legally contest an election. That legal procedure applies to all facets of an election cycle. Each state’s legislature has the authority to establish its own procedures in this regard as long as they do not violate federal law.

As an Indiana Circuit Court Judge I was involved in a recount of a congressional race, a county clerk general election, a county council general election, a town council election and a county council primary election. The Indiana legislature had enacted and published a clear statutory procedure for each type of election contest, including what role each public official should play in any recount. The statutes demanded total openness and media access to ensure the public could have confidence that if all involved followed the law a clear winner would be fairly determined. There were time limits, controls and transparency. After a recount result was certified in each contest life moved on and the eventual losers and their supporters accepted the results because they had had their “day in court”; that is, democratically enacted law was followed not the arbitrary or partisan activity of individuals.

De Tocqueville compared America’s hotly contested democratic elections to a surging river that strains at its banks with raging waters then calms down and carries on peacefully once the results have been properly certified. From my own experience with several elections and after the recounts of some of them, I agree with de Tocqueville’s analogy.

That is not to say I am for or against any type of recount for any office. I absolutely have no position on whether any candidate for any office should concede or contest anything. My position is simply that as long as the law is properly followed our democracy can handle either circumstance.

Football vs. Politics

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Democracy is messy but usually bloodless. Football is sweaty and sometimes painful. Football teams choose representative colors such as black and orange or cream and crimson. American politics are red versus blue. Football teams are led by coaches and financed by taxpayers or fat cats. Political parties are led by politicians and financed by drips and drabs via the internet or fat cats. Football teams have a few stars supported by several Sherpas. I was happy to be one of the Sherpas on the Pawhuska, Oklahoma high school Huskies football team a while ago and enjoyed every minute of it, except for wind sprints of course. I am still enjoying supporting the Huskies team which is undefeated and on their way to what I hope will be Pawhuska’s first state championship in football.

Political parties have a few stars supported by, usually, faceless minions. Football teams have one mission, to win, whoever the opponent is. Political parties believe their mission is to provide better government than competing political parties would provide. I will leave it up to you, Gentle Reader, if you believe any political party manages to achieve this goal.

Both football teams and political parties are governed by rules of procedure and conduct. With football teams a conference sets the standards and with political parties governments from the local level on up to the top have a hand in determining policy and ultimate victory. Football games are controlled by officials on the field who can enforce the rules. Their rulings are immediate and not subject to appeal but some can be reviewed. Albeit the final ruling, in effect, is made by the same people who made the initial one. Political races are governed by laws and can be subject to recount, review, repeal and reversal. Football fans sometimes must just grimace and bear a referee’s egregious error, such as giving one team an extra down as in the 1990 Colorado v. Missouri game. Of course, the problem with any attempted remedy in football is it would be impossible to completely and fairly recreate the original game circumstance. On the other hand there is the benefit that, other than endless conversations over beer, the calls at football games are final. But political races such as Bush v. Gore in 2000 may end up in the U.S. Supreme Court and may never be universally accepted as final.

As for me, I am currently marveling how my alma mater, Indiana University, can be undefeated in football after many years of wandering in the football wilderness. This column was written before Michigan v. I.U. upcoming on November 7, 2020, so I am hopeful it remains valid when you read this. And I am chagrined that Oklahoma State University where I started college could have lost to Texas last Saturday. I want a recount! I know I personally saw several blown calls that might have changed the score of the Cowboy game.

Regardless, what I have decided after suffering through the entire 2020 political season and cheering (or moaning) my way along the football season is that the temporary pains that I experienced playing football pale in the excruciation caused by the clanging brass of competing political parties and noxious news anchors. I am thankful for football and am past caring about the motes in the eyes of those who do not see eye to eye with me on politics.

 

It Ain’t Beanbag

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As described by Winston Churchill, “Democracy is the worst political system except for all the others”. And as we suffer through our ongoing political pandemic and naively hope for a November 03 cure the political sausage making gives evidence of Churchill’s observation. On the other hand, if we step back from the splattering mud, we might find some passing amusement in the process. Of course, that is only if we personally or people we care about are not running for office.

The first political campaign I cared about involved the presidential race between Lyndon Johnson and Barry Goldwater in 1964. As I was active military at the time I was quite interested in each candidate’s position on the “police action” in Vietnam. Also, 1964 was my first chance to vote as I had just turned 21 and the 26th Amendment lowering the voting age to 18 was not ratified until 1971. You may recall, if you lived through the ’60’s, or you may have seen old black and white TV images of that famous political advertisement run against Goldwater showing a little girl plucking a daisy as a mushroom cloud rose in front of her. Well, I saw it in 1964 and heard Johnson promise not to send “American boys to die in an Asian war”. As I was one of those American boys, that sounded good to me so I voted for Johnson. That was my first lesson in political reality.

1964 temporarily cured my faith in voting but I relapsed in 1972 when as a young lawyer I decided to save the criminal justice system by supporting a friend of mine in his bid to be elected county prosecutor. Another idealistic attorney friend of mine and I dove head first into election day politics. We stayed up all night making political signs then at o’dark-thirty started putting them up at polling places. We were involved. We felt virtuous.

Then we pulled into a large precinct where many people were lined up to vote. As we each grabbed a sign with our champion’s name on it and jumped out of my old Ford sedan a large woman hustled up to us and asked if we had been sent by “Headquarters”? Neither of us knew what a political party’s headquarters was so we stared at her blankly as she loudly proclaimed, “Well, you better get some ‘supplies’ out here as these people ain’t voting right!” We headed home.

No, democracy is not perfect but it is not all bad and you have to admit it is often interesting. Peg and I still vote every time we have the opportunity even though we are aware our government is staffed with humans, not Plato’s recommended Philosopher Kings. Do we sometimes get disappointed by our choices; certainly.  Do we get discouraged; yeah. Do we want any other political system; nope!

Locking Horns

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One day I met up with my friend Tim “Turtle” Smith in the parking lot of a golf course. “Hey, come look at what I found yesterday when I was out deer hunting.” I looked in the bed of Turtle’s pickup and saw two sets of deer antlers intertwined. Tim said, “I cut these off the heads of two dead stags. They must have starved to death after their battle for which one would gain the prize doe. I guess it is a metaphor for the old saying, ‘Don’t lose your head over.…’ ” Tim is kind of a colloquial philosopher. We do not know what other stag defaulted to winning the mythical doe, but surely a wiser one was lying in wait.

For some reason my encounter with Turtle came to mind after observing the Presidential Debacle last Tuesday evening. If the goal of a leader is to have his or her constituents adopt and follow a particular vision, when it comes to debating, the leader may want to concentrate on setting out elements of the vision and not fall into the quagmire of ad hominem. President Trump and Former Vice President Biden surely both have a vision for America but they both kept their visions well disguised Tuesday.

Usually in a debate someone is declared the winner. However, in the Presidential Debacle of 29 September 2020 there was no winner but there were three losers: President Trump, Former Vice President Biden and the electorate. We learned what we already knew; the candidates hate one another and the national news media loves only itself. Where was what Socrates called for over two thousand years ago when he cautioned, “The unexamined life is not worth living”? And Joseph Campbell’s only unforgiveable sin, that is “to be unaware”, was committed by both candidates and the moderator repeatedly.

If Americans are the prize and leadership is the goal, I suggest our presidential candidates each eschew both mudslinging and mud wrestling and spend their time and ours setting forth their plans for our future and explaining cogently how their plan is superior to their opponent’s. We can decide for ourselves if we like a candidate. What we need is knowledge about which aspiring leader is truly inspiring and not merely exasperating. Of course, if Donnie and Joey continue to act like scuffling school boys, perhaps we will see both of their denouements via the ballot box and a contested election. Then someone else may end up with the prize as declared by a handful of unelected judges.